In the sacrifice of soldiers, the
fierce brotherhood of firefighters, and the bravery and generosity of ordinary citizens,
we have glimpsed what a new culture of responsibility could look like. We want to be a
nation that serves goals larger than self. We've been offered a unique opportunity, and we
must not let this moment pass.

This week I witnessed an example of what
the President described.

On Wednesday, February 27, I was heading
home from work. Traffic on State Route 1 in Sussex County is light during the winter,
especially during the weekdays, and the cars and drivers are usually familiar fellow
long-distance commuters. Most of us were speeding along at the usual 10 miles above the
55-mph limit.

As I neared a slight curve to the left
about 11 miles from home, I saw a wide array of emergency flashing lights a few hundred
yards ahead. What looked like two volunteer fire company engines and a rescue vehicle
blocked the two southbound lanes. Two damaged vehicles sat in skewed positions just south
of the fire engines. One was a dull red Nissan pickup truck. I later learned the other,
more heavily damaged car was a Pontiac.

Volunteers from the State Fire Police
were also beginning to set up roadblocks, with their familiar blue lights winking on the
roofs of their cars. Another Fire Police volunteer pulled up to the scene from the
two-lane side road that formed the T-intersection where the accident occurred.

The half dozen cars I was traveling with
slowed down and moved to the right shoulder.

As I neared the scene, I could see what
happened.

A gas station/liquor store sits at the
T-intersection. Theres a crossover for traffic heading north on Route 1. The car
headed east directly from the gas station to reach the crossover to go north.

Tragically, the driver apparently
didnt see the oncoming pickup truck when he made his move.

The truck plowed into the car directly at
the drivers door.

As I passed by the scene, I watched a
volunteer firefighter kneeling over one of the victims on the ground in the middle of the
southbound lanes. His hands pumped up and down in the familiar crossed pattern recommended
for administering CPR.

The southbound traffic turned right onto
the two-lane road and shortly turned left onto another road for the detour. I looked to
the east and saw the State Police helicopter beginning its descent to the accident scene.

I learned later that the 60-year-old
driver of the Pontiac was not wearing a seat belt, and died of multiple injuries. The CPR
didnt work.

His 25-year-old passenger was transported
to a hospital 15 miles away for a hip injury. The driver and passenger of the pickup
truck, both of whom were wearing seat belts, were taken to a closer hospital for their
injuries.

Traffic was detoured from the area for
about two hours, as the States Fatal Accident Investigation Response team began
their investigation. At this point no charges have been filed.

My quick count at the scene as I passed
it, about 10-15 minutes after its reported occurrence, was that at least a dozen
volunteers, either firefighters or fire police, came to help at this accident. Along with
the state police, they made every effort to save the mans life, but were unable to
overcome the severity of the impact.

Every day thousands of volunteers across
the country make similar heroic attempts to help others in equally distressing
circumstances. Many times they succeed. Sometimes they cant. They try anyway.

Im not sure to what extent the
events of September 11 may have galvanized some of us to take on a greater responsibility
for others than before the planes hit the towers. As this example showed, however, there
are reasons for continued optimism about our fellow citizens acceptance of community
obligations in the midst of tragedy.

Will Vehrs very kind description of
our Mini-Blogger
Bash in Richmond, Virginia
yesterday may have given his readers the impression it was the blogger equivalent of My Dinner With André.

The great 1981 movie, written by and
starring actor/playwright Wallace Shawn and New York theater director André Gregory,
centered around a dinner between two friends, after a long spell in which theyd lost
contact with each other.

Gregory regales Shawn with stories of his
exotic encounters, searching for lifes purpose.

Shawn is far more pragmatic, capable of
finding meaning in his far more grounded experience.

The fact is that Vehrs and I are both
Wally Shawn.

We had a great first lunch together. The
conversation with the gracious co-host of Quasipundit ranged far and wide. We found common ground in unexpected
places--middle-aged twinges from knee injuries dating back to the high school track team;
moving to a new area after taking a new job, with accompanying lifestyle changes;
bureaucracies, public and private; and even a classic six degrees of separation connection
with a former State of Delaware cabinet official.

However, the open secret that no
one dares acknowledge in Washington is thatnobody knows what half of these
bills say. It's far easier to identify the hands that made them and vote on that
basis than to actually read all these laws. Who has time for that?

Taylor may have a point. Im not
sure anyone reads every bit of federal legislation. On the other hand, my professional
responsibilities happen to include reading all of the bills introduced into the Delaware
General Assembly.

Any state agency as politically sensitive
as transportation requires early notice of proposed laws that could affect it.

Hundreds of bills are introduced in the
Delaware House and Senate each session. Fortunately, the State constitution requires
almost all bills to be limited to a single subject, which admittedly makes the task
easier.

If a legislative proposal affects my
client, I notify the affected Division to develop a response for eventual transmittal to
the Governors Office. I do the legal analysis, but more often its just a
matter for the DOT staff to explain the policy implications.

Heres
a new proposalthat might
interest the blogger communityHouse Bill No. 398. It creates a series of state tax
incentives to encourage"Internet
Commerce Companies"to establish
a presence in Delaware. The definition includes entities that

engage[] solely in one or more of
the following activities:

(1) selling, licensing or leasing intangible products or services via the
Internet;
(2) providing informational or multimedia content via the Internet in return for
advertising revenue or for sale, license or lease;
(3) facilitating via the Internet contacts, transactions or relationships via the
Internet between or among persons or entities;
(4) generating revenue through placement of hyperlinks on a Website referring to
other Websites, whether such revenue is based upon number of impressions, the number of
click-throughs to the destination Website, a percentage of the revenue generated on the
destination Website or some other manner;
(5) providing access to the Internet;
(6) other similar activities via the Internet as the Director by regulation may
prescribe; and
(7) ancillary activities relating to the foregoing.

If this bill passes, and anyone ever
figures out how to make blogging profitable, at least we know where the registered office
should be located.

One count is for taking money for
cremations and not performing them, the other for not returning the proper ashes.

On conviction, each charge could lead to
a sentence of up to a year in prison.

Mr. Marshs problem (among others,
including an apparently deeply diminished sense of decency) is that the sentencing judge
can make the terms of imprisonment run consecutively.

The District Attorney should be applauded
for using a fairly standard prosecutorial tactic and elevating it to new heights, given
the communitys justifiable outrage about this case.

Any new legislation to make this alleged
conduct a felony simply cant apply to Marsh. A minor quibble called the
constitutional prohibition against ex post facto laws can ruin all the fun sometimes. (Article I,
Sections 9 and 10.)

Nonetheless, the defense counsel is
understandably upset:

The string of identical charges
is becoming "tiresome for the court," said Mr. [McCracken] Poston, a former
state legislator, at a recent bond hearing for Mr. Marsh. "We want to stop having to
come back here for a bond hearing every time a body is identified," he said.

I imagine he would. Im also sure
that his concern for the judiciary did not go unnoticed.

Judge William J. Day, the
county's chief magistrate, did not accept Mr. Poston's argument that the district attorney
was abusing the legal system, and other prosecutors say Mr. Franklin may have hit upon an
effective strategy.

It works for me. If convicted, Marsh will
face the tender mercies of the judge, whose discretion in sentencing could modify the full
effects of the district attorneys creativity.

A unanimous Supreme Court decision issued February 26 shows that at least on some
occasions the Court is more than willing to give full credit to legislative intent,
perhaps especially if it will help the judiciary.

For years, state prison inmates have
swamped the federal courts with thousands of lawsuits. Usually characterized as civil
rights claims, the cases ranged from alleged beatings by the guards, to overcrowding, all
the way down to the quality of the food being served in the prison cafeteria.

While the vast majority of these suits
were frivolous, a few had actual merit. Even so, it was hard to wade through all the dreck
to find time to deal with the legitimate claims.

The caseload also put a strain on the
state governments defending against these claims. When I joined he Attorney Generals
Office in Delaware in 1987, for example, several Deputies dealt solely with prisoner
cases, well out of proportion to the normal assignment pattern. Periodically several of
the rest of us would be assigned the overflow.

On most occasions the courts would
dismiss these cases as part of motion practice, but sometimes they would actually go to
trial.

One of my federal "prisoner
trials" took two days. The jury was out for only 10 minutes before they returned with
a verdict for the State.

I tend to think the jurors used half that
time to put on their coats and talk about where to go for lunch.

Congress tried on two occasions to
lighten the prisoner caseload. It passed legislation in 1980 that in some cases forced
inmates to exhaust their available administrative remedies within the correctional system
before filing in federal court.

That first attempt proved inadequate to
stem the prisoners' determined efforts to pass the time while incarcerated by clogging up
the courts. Accordingly, Congress tightened the laws requirements even further on
their second attempt. The Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. 1997e(a),
barred any action

brought with respect to prison
conditions under [42 U.S.C.] section 1983 , or any other Federal law, by a prisoner until
such administrative remedies as are available are exhausted.

Apparently the Second Circuit Court of
Appeals didnt take the hint.

In 1999, Ronald Nussle, an inmate in the
Connecticut Department of Correction, filed a Section 1983 lawsuit alleging that in 1996,
prison guards not only singled him out for harassment, but had also beaten him severely.
He barely met the three-year statute of limitations deadline for filing the litigation.

The Department had an available grievance
process for his claim, but Nussle sued first without filing his grievance under that
administrative system.

The District Court, for whose benefit the
PLRA was enacted, speedily dismissed the case. Undaunted, Nussle then appealed to the
Second Circuit, which reversed the lower court. The appellate judges decided that the term
"prison conditions" as used in the new law didnt apply to a single
incident claim alleging a beating by the guards.

After reviewing the legislative history
and considering its own precedents on prisoner litigation, the Supreme Court begged to
differ with the Second Circuit:

[W]e hold that the PLRAs
exhaustion requirement applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive force or
some other wrong.

Writing for the Court, Justice Ginsburg
took careful note of both Congressional intent and the practical realities of a workable
administrative grievance process:

Beyond doubt, Congress enacted
[Section] 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to
this purpose, Congress afforded corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case. In some instances,
corrective action taken in response to an inmates grievance might improve prison
administration and satisfy the inmate, thereby obviating the need for litigation In
other instances, the internal review might filter out some frivolous claims . And for
cases ultimately brought to court, adjudication could be facilitated by an administrative
record that clarifies the contours of the controversy [citations omitted].

She stated that Congress
consideration of past Supreme Court precedents in enacting the PLRA also supported the
conclusion that the Second Circuits interpretation was too limiting, and in fact
those decisions

tug[ged] strongly away from
classifying suits about prison guards use of excessive force, one or many times, as
anything other than actions with respect to prison conditions.

Based on my past experience in defending
against meritless prisoner cases, I have no problems with the Court's reasoning in Porter v.
Nussle. It makes perfect sense.

If people are driving, it's
because they want to and need to. One of government's most fundamental jobs is to
accommodate that need with roads.

If anybody ever tried that in
America, there'd be a revolt. Come to think of it, maybe this explains why we did revolt.

Perhaps Jarvis would be surprised at the
extent to which satellite-tracking technology and other high-tech devices are already used
hereabouts for transportation. In addition, thousands of highway users already pay road
use taxes tied directly to their actual mileage.

There are significant legal and technical
hurdles to applying the British satellite proposal to motor vehicles in this country, but
the fundamental problem remainshow to pay for the actual costs of transportation
services.

All states charge fuel taxes. Car owners
pay them when they fill their tanks. The gas station location determines which state
collects the tax, regardless of where the cars go after their tanks are full. Federal fuel
taxes are collected at the same time.

No state makes any effort to collect fuel
taxes based solely on the mileage each car travels within its own borders. That kind of
tax system would be an administrative nightmare, over and above the resulting political
suicide if such a proposal were ever made.

On the other hand, all 18-wheel
tractor-trailers pay road use taxesthat are directly tied to the mileage each truck
travels in each state. The International Fuel Tax Agreement,
mandated by the federal government, provides the administrative framework for road use
taxation. It includes quarterly reports, fuel economy calculations, and a financial
clearinghouse arrangement among the states and Canadian provinces.

Similarly, large trucks pay apportioned
tag registration fees, again tied to the mileage traveled in the states in which they
operate. This is called theInternational Registration Program. One of the interesting side effects of its
creation was to bring all states registration fees closer to each other. Some states
that formerly enjoyed a snappy little side business with their low truck tag fees had to
amend their tax code when the IRP went into effect, to make up for the lost revenue.

Many states also use the EZPass electronic toll collection
system, or similar technical replacements for fully staffed toll
highways and bridges. This arrangement of technologies uses radio transmitters, fiber
optic data lines, and a financial clearinghouse arrangement very similar to the credit
card industry. Faster toll transactions produce a huge increase in volume through the
tollbooths.

A few states, including my clients, use
EZPass technology on overhead gantries. Cars and trucks pay their tolls while continuing
to blast along at 65 mph.

One of the additional benefits of EZPass
technology is that under the right circumstances, it can be used for time-of-day pricing
that helps reduce congestion, the ultimate goal of the British proposal. The Port
Authority in New York instituted such a system on its Hudson River Bridges:

The implications are encouraging.
Total traffic delay at the toll plazas was significantly decreased without a significant
increase in total costs to highway users. In addition, there were some small revenue gains
for the road operators. Using time-of-day pricing on congested roads appears to be an
efficient means of reducing the dead-weight losses associated with delay.

Nonetheless, this system would not have
worked without the peculiar geography of Manhattan Island or other limitations on access.
Without the ability to make similar arrangements on the dozens if not hundreds of roads
leading to major population centers that are not on islands, it would be extremely
difficult to use this technology for that purpose.

In addition, the EZPass system is based
upon the voluntary choice of its users to sign up for it. Requiring an EZPass transponder
in each car is a herculean if not practically impossible task.

Both the private and public sectors use
satellite technology for limited vehicle tracking purposes. My clients transit
division uses it to identify the
location of its buses. That information is then fed through to electronic signs that tell
transit users when the next bus will reach a particular bus stop.

The British proposal would use the
equivalent satellite technology to institute time-of-day pricing for congestion relief,
with monthly billing of the users. That eliminates the gantry problem and other technical
issues that universal use of the EZPass technology model would require, but I believe it
would be impractical at best for the United States. The sheer relative scale of such an
enterprise here in America is daunting just from a technical demand standpoint.

In addition, and unlike Great Britain,
the legal problem would be to set up an enforceable tax collection billing system that
would apply to citizens from other states. Unlike the current fuel tax arrangement for
cars, in which the states essentially agree not to make a big issue over where the mileage
is used within each state, the British satellite system would depend upon it for
congestion reduction. That brings back the same political problems avoided by the current
fuel tax arrangement for cars, the primary source of the congestion that business and
governments would like to see reduced.

Both the British officials and the more
sane transportation officials in this country admit that they cannot build their way out
of congestion. There are, in fact, practical limits to how the government can
"accommodate that need with roads." The current toll systems and other available
technologies provide limited ways to manage the problem, but its difficult at best
to see how the British concept could ever be successfully instituted here.

Megan
McArdle linked via David Tepper to a very interesting web site. It asked a series of ethics questions that
required careful analysis to answer honestly, and then compared the responses to the
closest philosophical match.

My first three matches were Aquinas
(100%), Aristotle (93%), and Mill (81%). My wifes first three matches were Hume
(100%), Stoics (85%), and Nietzsche (82%). She says my results were on the money, and also
thought hers made sense.

From my perspective, I thought her third
match may have also provided a possible reason for our long marriage, based on one of his more
famous quotes:

Citing a Washington
Post/AP story, Den Beste wondered why a rape case was proceeding to trial, when DNA
test results showed only a 1 in 71,400 chance that the defendant was the culpable party.
He felt this was"pretty
damned good evidence for acquittal,"and bet he knew the answer:

This is, after all, out in the sticks in loosiana; how much you want to bet that the
victim was white and the accused has dark skin?

I think I can explain why this trial is
happening, based on my own modest prosecutorial experience of long ago, and what I learned
by surfing the Web today.

There is a real victim here. Yes, she
happens to be white and the defendant charged with the crime happens to be black. Unlike
other cases, however, not even the defendants
family disputes that the victim
was indeed bit, beaten, and raped. This is not some modern-day Louisiana version of To Kill a Mockingbird .

This case is literally related to Barry
Schecks good work on behalf of Clyde Charles, the
brother of the current defendant, Marlo Charles.

Clyde Charles was initially
convicted of the crime, and was cleared with the use of DNA evidence not available at
the time of his original trial in 1982. Louisiana waited until Scheck filed a lawsuit
before it eventually agreed to consider the DNA test, which is the reason for
the last several years of delay.

The DNA evidence to which Den Beste refers
is by no means the only evidence on which the prosecution will rely for its trial this
week. There are some additional elements. Heres whatthe local newspaper says:

A comparison of
Sheriff Office mug shots show that the brothers, born only 19 months apart, bore a
striking resemblance to one another in the early 1980s.

And Marlo, like
Clyde, had been in the area when the rape occurred.

In April 2000,
two Terrebonne detectives traveled to Hampton, Va., to talk to Marlo Charles.

Police say that
during that interview, conducted at the city police station in the presence of a Hampton
police officer, Marlo tearfully admitted that he was guilty.

The written transcript of that
interview says that, by way of headshakes and nods made in response to questions, Marlo
Charles told police he attacked the Grand Calliou woman and let his brother take the
blame.

The local paper also reported that Marlo
Charles defense attorney unsuccessfully attempted to keep the detectives
testimony from trial, but the trial judge ruled it was admissible. Of course, Marlo
Charles lawyer will still have an opportunity to challenge the officers
testimony during cross-examination.

Even with the admittedly modest probative
value of the DNA analysis, I believe there was sufficient evidence to support the Marlo
Charles indictment, and for his trial to be held.

Den Beste is certainly entitled to be
skeptical. Louisianas sorry history of race relations in general and Clyde Charles
in particular are not points of pride for that states citizens. I also do not envy
the difficult task the states delay will now cause the prosecutors as they try to
obtain a just result. Even so, the case seems to be worth trying. The race of the victim
and the race of the new defendant looks to be entirely irrelevant.

Theres another reason why
Louisiana should still press forward, despite its prior miss-steps:

[Sheriff Jerry] Larpenter [of
Terrebonne Parish] said he has talked with the rape victim since Marlo Charles was
arrested. "I think she's finally going to have closure for her life. She has been
fearing 'If it's not Clyde Charles, who is it?"

For those who appreciate irony, newpapers
are a constantly replenishing source of supply.

Some stories create an instant smirk or
two simply upon reading the headline. Others may take a few paragraphs before exhibiting
telltale signs of obviousness, banality, or stunning cluelessness, masquerading as actual
news or intelligent insight.

I suggest a new rating system for such
storiesa sort of blogger shorthand for "news" reporting that makes one
think perhaps the author was still recovering from being hit upside the head with a 2 by 4
when the piece was written.

As a long-time movie buff, I
offer for your consideration "The Claude Ratings," in honor of the great actor,
Claude Rains.

This one required reading the full story
to determine its Claude rating:

Enron lobbyists and executives
took part in 25 meetings and telephone calls with federal energy regulators as the
government grappled with California's soaring electricity prices.

While none of the meetings or
phone calls were believed to be illegal, [U.S. Senator Barbara] Boxer said she was
``disturbed that during the period of time that California consumers were begging for
relief from the price gouging electricity crisis, Enron was engaging in an active campaign
to get close to the top [Federal Energy Regulatory Commission] FERC decision-makers.''

Four Claudes, easily; note Boxers
use of "disturbed" in place of the classic "shocked."

To be fair, I certainly appreciate the
fact that most reporters dont write their headlines. Accordingly, when deciding how
many Claudes to give to unintentionally ironic journalism, please be careful to
distinguish between a thuddingly dense headline and the story running below it.

Official small print disclaimer: This is, after all, a personal web site. Any
opinions or comments I express here are my own, and don't necessarily reflect the official
position of my work as a government attorney or any of my clients.

That fact may become obvious later on,
but it needs to be said here anyway.